This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.

I am currently-re-reading all CJEU procurement decisions of 2015, 2016 and 2017 for a new book that will consolidate and revise the comments published in this blog and in other papers (more details on this soon), as well as new comments on those cases I did not manage to cover at the time (there are 10 of those). Doing that, I came upon the Order of 23 November 2017 in Olympus Italia, C-486/17, EU:C:2017:899 (only available in FR and IT), which I find interesting because it reinforces the Tecnoedi approach to the burden of proof of the existence of a 'certain cross-border interest' that engages the CJEU's jurisdiction to provide the relevant interpretation of EU public procurement law (for discussion, see here).

In Olympus Italia, the CJEU was sent a request for interpretation of Directive 2014/24/EU and, in particular, in relation to the regulation of negotiated procedures and the possibility for tenderers to amend their tenders in that context. However, the CJEU rejected the request on the basis that the referring court had provided insufficient information to establish the existence of a certain cross-border interest in a contract for an "all-hazards" technical assistance service for flexible endoscopes and machines used for washing such devices.

As justification for the rejection of the case, the CJEU stressed that

... the objective criteria which may indicate certain cross-border interest ... may be, in particular, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the contract and the specific characteristics of the products concerned. In that context, it is also possible to take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious...

... a conclusion that there is certain cross-border interest cannot be inferred hypothetically from certain factors which, considered in the abstract, could constitute evidence to that effect, but must be the positive outcome of a specific assessment of the circumstances of the contract at issue. More particularly, the referring court may not merely submit to the Court of Justice evidence showing that certain cross-border interest cannot be ruled out but must, on the contrary provide information capable of proving that it exists ...

In the present case, it is common ground, that the amount of the public contract at issue in the main proceedings amounts to EUR 85,000, which is considerably below the thresholds for application laid down in Article 4 of Directive 2014/24 ... On the other hand, in its reference for a preliminary ruling, the referring court has not provided any information enabling the Court to ... demonstrate the existence of a certain cross-border interest ... In those circumstances, the Court finds itself unable to provide a useful answer to the question raised... (C-486/17, paras 17-22, references omitted, own translation from French and emphasis added).

I find the Olympus Italia case interesting (and potentially worrying) if it is indicative of the willingness of the CJEU to avoid answering preliminary references on the basis of the absence of irrefutable proof of the existence of cross-border interest. I think that there have been plenty other cases where the CJEU was unable to establish this and, in any case, it provided an answer on the premise that the referring court would first have to assess whether such cross-border interest existed (for recent examples, see eg the 2015 Judgments in UNIS, C-25/14, EU:C:2015:821; or Enterprise Focused Solutions, C-278/14, EU:C:2015:228). If the CJEU is using the (evidence of the) existence of a certain cross-border interest as a 'docket-management' device, we can only expect further distortions of the case law in an area that is not precisely clear...